Citation Nr: 21026219 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-19 075 DATE: April 30, 2021 ORDER An initial rating in excess of 20 percent for right shoulder labral tear, including a superior labral anteroposterior (SLAP) tear, with effusion and degenerative arthritis, prior to December 23, 2019; and in excess of 30 percent, for status post-total replacement, right shoulder, from February 1, 2021 (excluding a temporary total period from December 23, 2019 to January 31, 2021), is denied. FINDINGS OF FACT 1. Prior to December 23, 2019, the Veteran’s right shoulder labral tear, including a SLAP tear, with effusion and degenerative arthritis is manifested by limited motion of the arm at shoulder level, with painful motion, weakness, fatigue, and lack of endurance of the major extremity with X-ray evidence of arthritis; but is not manifested by ankylosis, flail shoulder, false flail joint, or other impairments of the humerus, clavicle, or scapula. 2. From February 1, 2021, the Veteran’s status post-total replacement, right shoulder, is manifested by pain but is not manifested with chronic residuals consisting of severe painful motion or weakness. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for right shoulder labral tear, including a SLAP tear, with effusion and degenerative arthritis, prior to December 23, 2019; and in excess of 30 percent, for status post-total replacement, right shoulder, from February 1, 2021 (excluding a temporary total period from December 23, 2019 to January 31, 2021), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5010-5201, 5051. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1977 to December 1981 and from May 1984 to January 1999. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO). A March 2016 rating decision increased the rating for the Veteran’s right shoulder disability from 10 to 20 percent, effective June 28, 2010. The Veteran continues his appeal for a higher rating. In September 2018, the Board remanded this matter and a claim for service connection for sleep apnea. In a July 2020 rating decision, the RO granted service connection for sleep apnea. As this constitutes a full award of the benefit sought on appeal, this issue is no longer before the Board. Additional evidence was added to the file following the July 2020 supplemental statement of the case issued and prior to certification and transfer of the appeal to the Board. However, the Board notes that this evidence is not relevant to this matter and/or duplicative and a waiver is not necessary. See 38 C.F.R. § 20.1305. Entitlement to an initial rating in excess of 20 percent for right shoulder labral tear, including a superior labral anteroposterior (SLAP) tear, with effusion and degenerative arthritis, prior to December 23, 2019, and in excess of 30 percent, for status post-total replacement, right shoulder, from February 1, 2021 (excluding a temporary total period from December 23, 2019 to January 31, 2021). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.   38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.   38 C.F.R. § 4.1.  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found ─ a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” By way of background, the Veteran’s right shoulder disability was granted service connection as ‘residuals, right shoulder injury,’ and rated as noncompensable (0 percent rating) in a January 1983 rating decision under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. In June 2010, the Veteran filed for ‘service connection for right shoulder sprain/pain,’ and the RO appropriately processed this as a higher rating claim. In the May 2012 rating decision on appeal, the RO assigned a 10 percent rating for right shoulder degenerative arthritis, effective June 28, 2010. The RO amended the diagnostic code under which the Veteran was then rated, from DC 5010 to 5010-5201, after X-ray imaging showed degenerative arthritis of the right shoulder. In March 2016, the RO awarded a 20 percent rating and recharacterized this disability as ‘labral tear, including superior labral anterior-posterior lesion (SLAP) with small right shoulder effusion and degenerative arthritis of the right shoulder.’ The effective date and DC remained the same. Subsequently, the Veteran perfected his appeal. In December 2019, the Veteran underwent right shoulder replacement surgery. In a February 2020 rating decision, he was awarded a temporary total rating for the period from December 23, 2019 to January 31, 2021. A 20 percent rating was assigned, effective February 1, 2021, under DC 5051, which addresses shoulder replacements. 38 C.F.R. § 4.71a. In a July 2020 rating decision, the RO increased the rating to 30 percent, effective February 1, 2021. The diagnostic code remained the same. The Veteran seeks a higher rating for his right shoulder disability. As the Veteran was in receipt of a 100 percent rating from December 23, 2019, to January 31, 2021, this temporary total rating period is not subjected to the instant appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the right shoulder disability is rated by analogy to DC 5201, for limitation of motion of the arm. For rating purposes, under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5003. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Under Diagnostic Code 5051, a percentage of 100 is warranted for a full year following the shoulder replacement (prosthesis); a 60 percent rating is warranted when the prosthesis is accompanied by chronic residuals consisting of severe, painful motion or weakness in the affected extremity; a 30 percent rating is warranted when the veteran experiences intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to Diagnostic Codes 5200 and 5203. 38 C.F.R. § 4.71a, DC 5051. DC 5200 is for evaluation of ankylosis, scapulohumeral articulation (where the scapula and humerus move as one piece). Joint ankylosis that is favorable, with abduction to 60 degrees, can reach mouth and head, corresponds to a 20 percent rating for minor extremity and 30 percent for major extremity. Intermediate ankylosis between favorable and unfavorable warrants a 30 percent rating for minor extremity, 40 percent major extremity. Unfavorable ankylosis, abduction limited to 25 degrees from side, corresponds to 40 percent minor extremity, 50 percent major extremity. Ankylosis is defined as complete immobility of a joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5203, for malunion of the clavicle or scapula has a maximum rating of 20 percent in either arm and would not provide any greater benefit. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). However, as DC 5010-5201 was discontinued as of December 23, 2019, and DC 5051 was not amended, the amended criteria do not apply in this case. The evidence of record shows that the Veteran writes with his left extremity but performs daily living activities with his right extremity and is therefore, ambidextrous. For rating purposes, however, his right extremity is the dominant or “major” extremity, as the most severely injured hand of an ambidextrous individual is the dominant hand for rating purposes. See 38 C.F.R. § 4.69. The question before the Board is whether the Veteran’s right shoulder disability warranted a rating higher than 20 percent prior to December 23, 2019, under DC 5010-5201; or whether a rating higher than 30 percent from February 1, 2021, under DC 5051 is warranted. Turning to the evidence, the Board notes there were no medical records for review prior to September 2012. The earliest establishment for VA care was at that time, and there were no private medical records prior to September 2012 for review either. The Veteran underwent a VA contract examination in January 2012. He reported that his right shoulder flared up, caused numbness at times, and he was unable to sleep on that side. On examination, flexion was to 130 degrees with pain from 130 degrees, and abduction was to 120 degrees, with pain from 120 degrees. The Veteran performed repetitive-use testing without additional loss in range of motion. Functional loss was noted in the right shoulder. The examiner noted he had less movement than normal, with pain on movement. There was no localized tenderness, pain on palpation, or guarding found. No ankylosis was found. The Veteran had a positive lift-off subscapularis test result. Diagnostic imaging showed right shoulder degenerative arthritis. No history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The examiner noted there was no other AC joint conditions or impairment of the clavicle or scapula. The examiner indicated that the functional impact was that the Veteran could not lift much weight with the right arm. Private treatment records from November 2012 to May 2013 showed the Veteran reported range of motion limitations with all activities and that laying down, raising overhand, and doing pull-ups all increased right shoulder pain. He was unable to throw overhand and reported that it “gets stuck.” Range of motion findings showed flexion and abduction to 120 degrees, at worst. After requesting reconsideration of the May 2012 rating decision, the Veteran was afforded another VA examination in October 2013. The Veteran reported flare-ups described as certain movements cause deep right shoulder pain. Range of motion showed flexion to 125 degrees, with pain beginning at 115 degrees and abduction to 110, with pain beginning at 85 degrees. The Veteran was able to perform repetitive-use testing without additional loss in range of motion. The examiner noted he has less movement than normal and pain on movement of his right shoulder. His right shoulder was positive for both the Hawkins’ Impingement and Empty-can tests. Diagnostic imaging showed right shoulder arthritic changes. The examiner was unable to comment without undue speculation as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability of his right shoulder during flare ups or when the joint is used repeatedly over time. The examiner noted there was no other AC joint conditions or impairment of the clavicle or scapula. A February 2014 private magnetic resonance imaging (MRI) results showed there was severe arthritis of the right shoulder with small joint effusion with a loose body, and a tiny punctate perforation in the right supraspinatus tendon. At the March 2016 VA examination, the examiner diagnosed the Veteran with right shoulder labral tear, including a SLAP tear, loose body subcoracoid bursa, degenerative arthritis, and small right shoulder effusion. He reported persistent pain with weakness, fatigue, lack of endurance, and decreased range of motion in his right shoulder. The Veteran reported flare ups of severe pain that often woke him up from sleep. He also had difficulties with daily living activities, such as placing an object on a shelf above his head or changing a lightbulb overhead. In general, it was reported that any repetitive activity of the upper extremities causes increased pain, which in turn, causes disuse and impairment. Objectively, right shoulder flexion was to 140 degrees, but only 120 degrees after repetition testing. Abduction was to 100 degrees, but 80 degrees after repetition testing. External rotation was to 30 degrees and internal rotation was to 20 degrees; these ranges of motion were limited to 10 degrees respectively after repetition testing. Pain was noted on exam during range of motion testing and on weightbearing. The examiner noted pain, fatigue, weakness, and lack of endurance contributed to a range of motion loss of 10-20 degrees (flexion to 120 degrees and abduction to 80 degrees) after repetitive use testing. The examiner indicated it is impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could additionally limit functional ability greater than 5 degrees during flare ups, or when the joint is used repeatedly. The examiner found weakened movement due to muscle injury. The Veteran’s right shoulder was positive for the Hawkins’ Impingement, Empty-can, External Rotation/Infraspinatus Strength, Lift-off Subscapularis, and crank apprehension and relocation tests. There was a history of mechanical symptoms, but there was no recurrent dislocation of the scapulohumeral joint, ankylosis, malunion, or nonunion of the joints found on exam. Regarding functional impairment as it relates to occupational activities, the examiner noted that in general, any repetitive activity of the upper extremity causes increased pain. In April 2017, the Veteran was afforded a VA contract examination for his left shoulder. That examination report also contains clinical findings relevant to the right shoulder. The examiner noted right shoulder flexion to 70 degrees and abduction to 160 degrees, with pain on weightbearing, but without additional loss in range of motion. The Veteran was able to perform repetitive-use testing, with pain, but it did not result in additional loss in range of motion. The Veteran stated that his right shoulder bothers him sometimes and during flare ups, those symptoms worsen. The examiner indicated that an estimate regarding the lost range of motion during flare-ups could not be estimated as the Veteran was not being examined during a flare-up and unable to replicate that range of motion. The examiner also noted the Veteran reported weakness and pain occurred with repeated use over time but was unable to state whether those symptoms limited his functional ability without speculation. The Hawkins’ Impingement test was positive. There was no ankylosis or shoulder instability found. Passive range of motion for the right shoulder showed flexion and abduction to 170 degrees. Private treatment records obtained from EmergeOrtho showed from 2016 to 2018, the Veteran’s right shoulder flexion ranged from 110 to 130 degrees and abduction from 75 to 80 degrees. Pursuant to the Board’s remand, the Veteran was afforded another VA contract examination in October 2019. The Veteran reported experiencing extreme pain and limited use and movement that affected his sleep. He experienced flare ups nightly and daily pain that was moderate to severe and lasted a few to multiple minutes. Range of motion test showed flexion to 120 degrees and abduction to 110 degrees, with pain. There was no evidence of pain with weightbearing, but pain was observed on passive range of motion and non-weightbearing testing. The examiner noted a decreased ability to lifting and reaching overhead. The Veteran was able to perform repetitive-use testing, but there was no additional loss in range of motion. The examiner found that the Veteran had functional limitations due to pain, weakness, fatigability, or incoordination but this did not cause limitations in range of motion. The examiner found no history of recurrent dislocation of the scapulohumeral joint. VA treatment records during the appeal period showed the Veteran reported pain when laying on his right side at night, and decreased range of motion. These records also provided diagnostic imaging results and reflected that he had right shoulder surgery and non-VA treatment for his disability, but they did not reflect specific range of motion findings. Private treatment records showed the Veteran had right shoulder replacement surgery in December 2019. More recent VA treatment records after the surgery showed the Veteran reporting shoulder pain or general right shoulder pain but did not distinguish which side. Given the foregoing, the Board finds that an initial rating in excess of 20 percent for his right shoulder disability, prior to December 31, 2019, is not warranted. The Board acknowledges and is sympathetic to the Veteran’s lay reports of symptoms attesting to functional impairment due to pain, weakened movement, flare-ups, as well as his limitations in performing certain movements such as reaching overhead. However, prior to December 31, 2019, even when considering his reported pain and other symptoms and the noted functional loss, his right shoulder range of motion does not more nearly approximate the arm being limited to midway between his side and the shoulder level, or the arm being limited to 25 degrees from his side. At worst, the objective range of motion findings show flexion and abduction limited to at, or, above shoulder levels. Indeed, the March 2016 VA examiner opined that pain, fatigue, weakness, and lack of endurance contribute to a range of motion loss of 10-20 degrees, which was flexion limited to no less than 120 degrees and abduction limited to no less than 80 degrees. The October 2019 VA examiner indicated that although the Veteran has functional limitations due to pain, weakness, fatigability, or incoordination, this does not result in additionally limited range of motion. The 20 percent rating currently in effect for the period prior to December 31, 2019, was assigned by the RO in consideration of functional loss due to painful motion, pursuant to 38 C.F.R. § 4.59; DeLuca. The RO indicated that the 20 percent rating was the minimum compensable rating for a major shoulder joint and was assigned for the Veteran’s painful right shoulder motion. The evidence does not support the assignment of a rating in excess of 20 percent, as the Veteran does not assert, and the medical evidence does not reflect that his right arm is limited in motion midway between his side and shoulder level or to 25 degrees from his side. Thus, the Board finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Indeed, the October 2019 VA examiner considered functional loss due to pain, but noted there was no additional loss in range of motion. In addition, when considering the January 2012, October 2013, March 2016, and April 2017 VA and VA contract examination reports together, the Veteran’s pain and weakened movement, at worst, still showed motion of the arm at or above shoulder level. Private treatment records corroborate the VA and VA contract examination reports that his right shoulder range of motion findings was at or above shoulder level, which more nearly approximates his current 20 percent rating. In sum, the probative medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. A rating in excess of 30 percent, status post-total replacement, right shoulder, from February 1, 2021, is also not warranted. From February 1, 2021, the evidence is also against the assignment of a rating in excess of 30 percent for the Veteran’s status-post total replacement, right shoulder, under DC 5051. The Board is sympathetic to the Veteran’s report of general right shoulder pain, as shown in VA treatment records, but his manifestations do not more nearly approximate chronic residuals consisting of severe, painful motion or weakness, so as to warrant the next higher rating under Diagnostic Code 5051. For both appeal periods under review, the Board has further considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating at any time during the period on appeal (excluding the period for the temporary total rating assigned). Other diagnostic codes pertaining to the shoulder include Diagnostic Codes 5200 (favorable ankylosis of the scapulohumeral articulation) and 5203 (impairment or dislocation of the clavicle or scapula). These manifestations are not shown in the record during the entire period on appeal, and thus would not warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Finally, the Board acknowledges that the October 2019 VA contract examiner noted there was evidence of shoulder instability, but there was no recurrent dislocation found at the scapulohumeral joint. Recurrent dislocation was also not found during the other VA examinations or in the medical records. As such, DC 5202 does not apply. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for an initial rating in excess of 20 percent for right shoulder labral tear, including a SLAP tear, with effusion and degenerative arthritis, prior to December 31, 2019, and a rating in excess of 30 percent for status post-total replacement, right shoulder, from February 1, 2021. Therefore, the benefit of the doubt doctrine is not applicable, and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.